This is an appeal from the district court's approval of a reapportionment plan adopted by the Vernon Parish, Louisiana School Board. Appellants, black residents of the Parish, alleged that the plan violated their rights under the Fourteenth and Fifteenth Amendments of the United States Constitution, and did not meet the standards required by the Voting Rights Act, 42 U.S.C. § 1973, as amended in 1982. The district court determined that it had not been shown that the School Board's plan violated appellants' rights under the Constitution, or failed to meet Voting Rights Act standards, and that accordingly the decision of the School Board, as the proper legislative body to promulgate the reapportionment plan, was entitled to deference and should be sustained. We affirm.
FACTS AND PROCEEDINGS BELOW
Vernon Parish (the "Parish") is a rural parish in western Louisiana, with a total population of 38,897, excluding Fort Polk military personnel. The population is 85 percent white, 12.4 percent black, and 2.6 percent other races. The majority of the black population is concentrated in a relatively small geographic region in and around the town of Leesville near the center of the Parish. Prior to the bringing of this suit, no black had been elected to the School Board under the existing twelve-member scheme.
Each Louisiana parish school board is authorized by state law to reapportion itself, as long as each board member as nearly as possible represents the same number of persons. La.-R.S. 17:71.1.
Pursuant to this authority, the Vernon Parish School Board (the "Board") in
Elections for Board members under the new plan were set for March 26, 1983 (primary election) and April 30, 1983 (general election). The candidate qualifying period was set for January 24-28, 1983. Shortly before the qualifying period was to begin, appellants, all black residents of Vernon Parish, at least some of whom are members of the local Political Action League ("PAL"), brought suit seeking an injunction to prohibit the qualifying of candidates and the holding of an election, alleging that their rights under the Fourteenth and Fifteenth Amendments of the United States Constitution had been violated by the adopted plan. Appellants also alleged that the plan failed to meet the standards set out in the Voting Rights Act, 42 U.S.C. § 1973 et seq., as amended in 1982.
On January 13, 1983, the district court entered a rule nisi enjoining the Board from holding the elections as scheduled, and ordering appellees to show cause why a preliminary injunction should not issue. On January 19, 1983, by consent of the parties, the court held a hearing on the merits.
Kenneth Selle, president of Tri-S, who worked on the plan for the Board, testified as an expert at the hearing. Selle testified that he received somewhat cursory instructions indicating the Board's concern that reapportionment was necessary because of population shifts within the district. He was instructed to take into account the requirements of the Constitution, the Voting Rights Act, and the Justice Department's current preclearance screening requirements, and to draw an acceptable plan. In accord with Selle's experience, he recommended that the new plan should as closely as possible track the basic apportionment geography of the existing scheme,
Using detailed 1980 census data, Selle determined the total population of the Parish to be 38,897, excluding the military personnel stationed at Fort Polk. For a thirteen-member Board, and in consideration of the one-man-one-vote requirement of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), Selle determined the normative per-member population to be 2,997. He determined that drawing
Selle admitted on cross-examination that a twelve single-member district plan was possible, as was also evidenced by the existing Parish Police Jury plan. He added that it was impossible, however, to carve out either a second "safe" black district or a second district in which blacks would have a sizable, if nonmajority, proportion of the vote. According to Selle, this result obtained because, notwithstanding the concentration of black population in the Leesville district 1-D area, the remainder of the black population within the parish was geographically scattered.
Shortly thereafter, on February 2, 1983, the district court enjoined the scheduled elections until further orders, pending its decision on the merits. On October 13, 1983, while the district court still had the suit under advisement, registered voters in (old) ward 1 of the Parish (covering an area
The Police Jury plan consisted of twelve single-member districts. It, too, provided for one single-member district in substantially black northwest Leesville, including some rural portions of the old ward 1 area surrounding that Leesville district, an arrangement which would also virtually guarantee that a black be elected to the Board. The district court found the Police Jury plan superior in several respects to the Board's plan. In particular, the court expressly determined that: (1) the Police Jury plan was superior with respect to the Reynolds v. Sims one-man-one-vote requirement; (2) it was superior also because it did not increase the Board size from twelve to thirteen members, thereby diluting numerically the voting power of the potential black Board member; and (3) it was superior because it consisted entirely of single-member districts. The Police Jury plan had a maximum deviation factor from the normative per-member population of only 6.3 percent, where the Board's plan showed a maximum deviation of 8.94 percent (district 1-D versus district 2).
The district court found as a matter of fact that, given the present geographical distribution of the minority populations within the Parish, no additional majority black district was possible. It determined that, although the proposed thirteen-member Board plan would numerically dilute the voting strength of individual members of the Board, including that of the prospective black member from the "safe" black district created by the plan, such dilution was not unconstitutional or otherwise illegal. It found that, because of population shifts, the then current plan (that replaced by the "new" plan here at issue) was unconstitutional, and that the evidence established that the new plan, specifically its thirteen-member feature (as contrasted to the twelve members of the former plan and of the Police Jury plan), "was prompted by motives other than racial motives." It noted also that there was no evidence that the right of any individual minority voter in the Parish was "impeded, threatened or denied," and concluded that the evidence, taken as a whole, established that the Board's
Accordingly, the district court approved the adoption of the Board plan, and set elections for April 7, 1984 (primaries) and May 5, 1984 (general election), with a three-day qualification period for candidates commencing March 8, 1984. Appellants then brought this appeal.
The record indicates that appellants' primary concern in the district court was twofold: First, the increase in Board size from twelve to thirteen members allegedly constituted an impermissible dilution of minority voting power by reducing the voting power of the potential black Board member from one-twelfth to one-thirteenth of the total Board votes. Second, appellants alleged that an only 65 percent black voting majority within district 1-D was sufficient to ensure its "safety" as a black seat on the Board
STANDARDS OF REVIEW
The issues of law raised in this appeal are controlled by the recent decision in Jones v. City of Lubbock, 727 F.2d 364, reh'g denied, 730 F.2d 233 (5th Cir.1984). In Jones, this Court summarized the history of voting rights cases and voting rights law before City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), through Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982), and through congressional action amending the Voting Rights Act in such a way that pre-Bolden law was largely codified. 727 F.2d at 376-80. Under the 1982 amendment to section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq., and under this Circuit's decision in Jones, the appropriate standard to employ in determining whether a legislative plan violates the Voting Rights Act is to require that there have been a showing sufficient to justify the conclusion that the proposed scheme results in a discriminatory dilution of minority voting power, whether or not the implementing or maintaining governmental body actually intends a discriminatory result.
In Jones v. City of Lubbock, this Court listed those factors specifically enumerated in the legislative history of the 1982 amendment to section 2 of the Voting Rights Act as "typically" relevant in determining whether a given reapportionment plan or an existing scheme is illegal under that Act. Those factors include: (1) the extent of any history of official discrimination affecting the right of minority group members to register, vote or otherwise participate in the democratic process; (2) the extent to which voting has been racially polarized; (3) the extent to which the political subdivision has employed unusually large election districts, majority vote requirements, anti-single shot provisions or other voting practices that enhanced the opportunity for discrimination; (4) if candidate slating processes were used, whether the members of a minority group have been denied access to that process; (5) the
By contrast, to establish the unconstitutionality of a voting scheme, a complainant must show by direct or indirect evidence that there exists a purposeful intent to discriminate on the part of the enacting legislative body. Bolden, 446 U.S. at 62, 66, 100 S.Ct. at 1497, 1499; Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971); McCarty v. Henson, 749 F.2d at 1136; Jones, 727 F.2d at 377-78. That intent may take the form of the introduction of an intentionally discriminatory practice, or the mere adherence to existing practices with the intent to maintain a discriminatory system. Bolden, 446 U.S. at 62, 100 S.Ct. at 1497; Lodge v. Buxton, 639 F.2d 1358, 1363 (5th Cir.1981). A direct showing of subjective intent is not necessary; objective indicia may be used to show the existence of a discriminatory purpose. Rogers v. Lodge, 458 U.S. 613, 622-27, 102 S.Ct. 3272, 3278-81, 73 L.Ed.2d 1012 (1982); McCarty v. Henson, 749 F.2d at 1136; Jones, 727 F.2d at 376-378.
At-large plans are not per se illegal. Bolden, 446 U.S. at 66, 100 S.Ct. at 1499; White v. Regester, 412 U.S. 755, 765, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314 (1973); Whitcomb v. Chavis, 403 U.S. at 156-60, 91 S.Ct. at 1875-78; McCarty v. Henson, supra.
We note also that, in legislative apportionment plans, maximum district population deviations from normative values that are less than ten percent generally qualify a plan as prima facie constitutional, a rule of thumb of which the district court was aware. See, e.g., Connor v. Finch, 431 U.S. 407, 417-18, 97 S.Ct. 1828, 1835-36, 52 L.Ed.2d 465 (1977) (variations of 16.5 percent and 19.3 percent violate equal protection; under ten percent variation establishes prima facie constitutional validity "only in the context of legislatively enacted apportionments"); Gaffney v. Cummings, 412 U.S. 735, 739-41, 93 S.Ct. 2321, 2324-25, 37 L.Ed.2d 298 (1973) (7.83 percent in legislative plan); White v. Regester, 412 U.S. at 764, 93 S.Ct. at 2338 (9.9 percent in legislative plan); cf. Wyche v. Madison Parish Police Jury, 635 F.2d 1151, 1156, 1159 (5th Cir.1981) (4.11 percent
It is the legislature's function to make decisions of basic political policy. Thus, even where a legislative choice of policy is perceived to have been unwise, or simply not the optimum choice, absent a choice that is either unconstitutional or otherwise illegal under federal law, federal courts must defer to that legislative judgment. Upham v. Seamon, 456 U.S. 37, 40, 102 S.Ct. 1518, 1520, 71 L.Ed.2d 725 (1982); Jones, 727 F.2d at 374; see also McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 341, 4 L.Ed. 579 (1819); McDaniel v. Sanchez, 452 U.S. 130, 139-40, 101 S.Ct. 2224, 2230-31, 68 L.Ed.2d 724 (1981); Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978), Burns v. Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 1293, 16 L.Ed.2d 376 (1966); Reynolds v. Sims, 377 U.S. at 586, 84 S.Ct. at 1394. In Upham, the Supreme Court again reiterated this standard of judicial deference to constitutionally permissible determinations of policy and reapportionment by the states. The Court stated expressly that "in the absence of any finding of a constitutional or statutory violation ... a court must defer to the legislative judgment the plan reflect[s]," and that, where the Justice Department has offered no objections following a pre-clearance submission under section 5 of the Voting Rights Act, a federal court is not free to substitute its reapportionment preferences for those of the state. Id., 456 U.S. at 40-41, 102 S.Ct. at 1520-21.
This is not a case involving a court-ordered plan, where equitable considerations demand a close scrutiny and mandate the fashioning of a near-optimal apportionment plan. See, e.g., Bolden, 446 U.S. at 66 n. 12, 100 S.Ct. at 1499 n. 12; Connor v. Finch, 431 U.S. at 415, 97 S.Ct. at 1834; Chapman v. Meier, 420 U.S. 1, 26-27, 95 S.Ct. 751, 765-66, 42 L.Ed.2d 766 (1975). Instead, the district court was asked to find unconstitutional or otherwise illegal a plan drawn by the body duly authorized by state law to effect a reapportionment. Under the Wise v. Lipscomb standard, the federal district court is precluded from substituting even what it considers to be an objectively superior plan for an otherwise constitutionally and legally valid plan that has been proposed and enacted by the appropriate state governmental unit. "The only limits on judicial deference to state apportionment policy ... [are] the substantive constitutional and statutory standards to which such state plans are subject." Upham, 456 U.S. at 42, 102 S.Ct. at 1521 (citing White v. Wiser, 412 U.S. 783, 794-95, 93 S.Ct. 2348, 2354-55, 37 L.Ed.2d 335 (1973)).
NO SECOND "SAFE" OR MORE BLACK-ORIENTED DISTRICT
We review the district court's findings of fact under the clearly erroneous standard. Rogers v. Lodge, 458 U.S. at 622-23, 102 S.Ct. at 3278-79; Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); Jones v. City of Lubbock, 727 F.2d at 371; Fed.R.Civ.P. 52(a). In particular, we conclude that the district court's findings that the School Board was not actuated by a racially discriminatory motive and that no plan could be drawn that would include more than one "safe" majority black district are amply supported by evidence in the record.
Selle's testimony was to the effect that it would be impossible to draw district boundary lines in such a way that either a second "safe" black district, or a second district with a significant black population, could be created. He was questioned at length concerning both the method of his determination of the plan boundaries ultimately proposed to the Board, and of the constraints and imperatives under which he felt he was operating. His testimony reflected a thorough knowledge of local demographics and of the legal constraints applicable to the task. He was questioned extensively concerning possible alternatives that might enhance black voting power in the Parish, beyond those inherent in the plan as proposed. His unshakable opinion
Appellants' cross-examination of Selle provided no basis for doubting his referenced conclusions. He indicated that, in discussions with the Board, "they preferred to maintain pretty much, as much as possible, the [geographical] format they had." He indicated that his preliminary research had revealed that no black had been elected to the Board at least since the 1920's. Aware of the need, therefore, to include a black member on the Board,
Appellants offered no testimony of their own, by expert or lay witnesses, to discredit or cast doubt on Selle's account or opinions. They offered no evidence indicating that a second "safe" or even "influential" black district could be drawn.
THE SCHOOL BOARD REAPPORTIONMENT PLAN
Appellants also complain that the Board's decision to add a thirteenth member to the then existing twelve-member Board diluted the power of any potential minority member on the Board.
A. A "Better" Plan?
The district court found that, notwithstanding its perception of the superiority on general grounds of the alternative plan adopted by the Police Jury, the Board's plan was "not impermissible and not unconstitutional." Nor was it the product of any racially discriminatory motive. Consequently, the district court approved the Board's plan.
The language of the Voting Rights Act itself provides expressly that, although the Act is intended to discourage discrimination against minority groups with respect to their opportunity for participation in the electoral process, it does not purport to guarantee or to compel minority representation in publicly elected bodies that is proportional to the racial makeup of the political unit: "Nothing in this section establishes a right to have the members of a protected class elected in numbers equal to their proportion in the population." 42 U.S.C. § 1973(b) (West Supp.1982). Nor has any equal protection analysis ever imposed such a guarantee of electoral success.
Appellants' conclusory assertions that a better plan might have been drawn do not meet the burden of proof of illegality outlined by Congress and applied by this Court in Jones. Selle's testimony, amply supported by objective statistical data, established, first, that a second "safe" black district was impossible because of the widespread and homogeneous geographical distribution of the remaining black population in the Parish; and, second, that it was impossible to compose a second district having a substantial black influence, even by utilizing some of district 1-D's "excess" black population. These points were unrebutted by any testimony or documentary evidence.
Testimony by appellant Seastrunk did indicate that a few of the Zimmer Voting Rights Act factors were present: That the Parish had a history of overt discrimination could be inferred from the historical absence of any black Board member; in fact, no black had ever held office of any sort in the Parish. The existence of a primary system may have worked to the detriment of blacks achieving success in being elected to public office. But there was no evidence to indicate the presence of any other of the relevant factors. In particular, there was no evidence that any black had recently been prevented from voting or otherwise participating in the electoral processes of the Parish. There was no evidence of candidate slating from which blacks were excluded, nor of polarized voting patterns, majority voting requirements, exceptionally large election districts, or any other such contrivances to dilute or degrade the voting power of Parish blacks. There was no indication that recent discrimination was practiced in areas such as education, employment or health, which might have reduced the ability of blacks to participate effectively in the electoral processes of the Parish. Nor were there indications that recent elections had been at all characterized by overt or subtle racial overtones, or
B. The Dilution Claim
Appellant Seastrunk's testimony establishes that the major, if not sole, ground for appellants' objections to the Board plan were that an unspecified "better" plan could have been drawn and that appellants preferred a plan different than that adopted by the School Board. Though there was no admission directly by the parties, appellants made the strong suggestion, and both parties explored the question, whether the School Board chose to go from a twelve-member to a thirteen-member Board in order to avoid any of the incumbents necessarily having to lose their seat in the upcoming election. While this may not reflect a very laudable or altruistic motive on the part of incumbent Board members, it is not facially or per se a discriminatory one.
Appellants simply have made no sufficient testimonial or documentary showing that would justify an inference that the Board acted with discriminatory intent when it chose to adopt a thirteen-member apportionment plan. The district court properly found there was no such intent. Nor were there any facts in the record to show that the Board plan in any way denied any black member of the Parish voting population access to the political processes of the Parish school government. The district court properly found there was no such denial. Appellants' unsupported complaint was only that a differently drawn plan might result in the Parish blacks achieving a yet greater success in electing members to the Board than was afforded by the single "safe" black district.
As we have previously noted, however, neither the Constitution nor the Voting Rights Act purport to guarantee minority success at the polls. The Voting Rights Act requires that "the political processes leading to nomination or election" be "equally open to participation" by minorities and that minorities not have "less opportunity than other[s] ... to participate in the political processes and to elect representatives of their choice." 42 U.S.C. § 1973(b) (emphasis added). But it does not grant the right to proportional minority elected representation as such, though the extent of minority electoral success is "one circumstance that may be considered." Id. To be sure, an "opportunity" may be rendered meaningless except in form, where the voting scheme is effectively arranged in such a way that otherwise normally available possibilities for realistic minority success at the polls are precluded. But we are not here faced with such a situation.
Considering the relative proportion of the black population in comparison to the whole, the blacks of the Parish would be entitled to only 12.4 percent of the seats on any Board. For a twelve- or thirteen-member Board, this is only one seat. To be entitled to two seats, the black population would need to be at least 16 2/3 percent (twelve-member Board) or 15.4 percent (thirteen-member Board). With the present proportion of black population in the Parish, the Board would need to be at least of sixteen-member size to afford a second
Here, the extent of effective dilution
In Cook v. Luckett, 735 F.2d 912 (5th Cir.1984), this Court considered the reapportionment scheme proposed by the Madison County, Mississippi county supervisors, which involved district lines that "were more than just odd" and "respond[ed] poorly to commonly understood policies that govern apportionment planning." Id. at 920. Recognizing that the county plan had a population variance among the districts that was satisfactory to the Constitution, and that the plan had been precleared under section 5 of the Voting Rights Act, this Court approved it and noted that
We also held that a federal court may reject a properly proposed legislative scheme only to the extent necessary to correct specific deficiencies found to exist, and that questions of policy were reserved for legislative resolution. Certainly the contrived plan proposed by Madison County officials in Cook constitutes an even more extreme example of what might arguably be termed a self-interested legislative reapportionment than does the Vernon Parish School Board's instant thirteen-member plan.
Appellants complain that a better reapportionment plan might be available, although they proposed no such plan. They alleged no facts and offered no proof that the School Board plan violates the one-man-one-vote requirement, or that it results in the denial to any black voter of access to School Board political processes or of equal opportunity to elect representatives. The effect of the dilution of Board member voting power by the increase in size of the Board is de minimus and without practical significance. There was no showing that the Board adopted the plan with any intent to discriminate. The bare assertion that a more suitable plan was possible is insufficient to establish such an intent or effect. The evidence in this record is simply insufficient to justify — much less compel — a conclusion that the Board's plan is unconstitutional or that it violates the Voting Rights Act. Absent such facts, federal courts are without authority to overturn a validly drawn legislative apportionment plan, regardless of its general wisdom or desirability. Consequently, we affirm the judgment of the district court.
The new plan, with a normative per-member population of 2,997, showed the following ethnic and racial population breakdowns:
% Total % % % Normative District Population White Black Other White Black Other Deviation -------- ---------- ----- ----- ----- ----- ----- ----- --------- 1 (4)
a12226 10426 1067 733 85 9 6 1.99 (3056.5) b1-D 3132 309 2823 0 10 90 0 4.50 2 (2) a5728 5538 120 70 97 2 1 (4.44) (2864) b3 3010 2888 103 19 96 3 1 0.43 4 3082 2307 579 196 75 19 6 2.84 5,6,8 c8599 8506 65 28 99 1 0 (4.36) (3) a(2866.3) b7 3120 3006 48 66 96 1.5 2.5 4.10
The precursor to section B, which might arguably apply to the initial plan proposed by the Board, provided in substance for the same possibilities of district geography and Board membership.
There is no evidence of the socio-economic or political characteristics of the "other" (nonwhite, nonblack) group. Census figures (which apparently include military personnel stationed at Fort Polk) seem to indicate that this group's distribution is in general very roughly similar to that of blacks. The "other" group includes Spanish origin (47 percent), "other" (30 percent), Asian (18 percent), American Indian (5 percent) (percentages are based on totals including military personnel). No point was made below, nor has any been made on this appeal, as to the actual or potential effect of the "other" group in any respect; nor is there sufficient evidence of record to meaningfully assess such effect.
We note also that this plan reflected a maximum per-member deviation from the normative value for a twelve-member Board by some 28.9 percent (the PAL "ward 5" had a total population of only 2,308), and on this basis alone, was less desirable in terms of the Reynolds v. Sims one-man-one-vote requirement than either the Board or Police Jury plans.
There are no indications in the record that the appellants advocated adoption of the Police Jury plan in lieu of the Board plan.